As noted in an October 2013 blog post (here), more than three years have passed since the Department of Justice (“DOJ”) revised its regulations requiring businesses and state and local governments (“covered entities”) to allow the use of other power-driven mobility devices (“OPDMDs”) in their facilities by individuals with mobility disabilities. Unlike wheelchairs and scooters, OPDMDs are mobility devices that are not designed primarily for use by people with mobility disabilities (e.g., Segways™ and golf carts). Last month, the DOJ issued its first full technical guidance document on this topic. Our takeaway from this recent guidance is that DOJ does not want covered entities limiting the use of OPDMDs, especially Segways, unless there is a very good reason to do so. DOJ also expects covered entities to develop written policies and rules for OPDMD use and train their employees on how to implement those policies.

As we’ve previously reported, new Department of Justice rules give individuals with mobility disabilities the right under the ADA to use a wide variety of non-traditional powered mobility devices in public accommodations facilities. The lawsuits and complaints about this issue are on the rise so businesses should familiarize themselves with this issue to avoid expensive lawsuits.

On Thursday March 20, 2014, from 1:00-2:00 PM EST, our ADA Title III Team Specialists Minh Vu and Paul Kehoe will present a webinar that answers: Do I Have To Let People With Disabilities Ride Their Segways In My Place Of Business? They will discuss the regulatory requirements, the most recent official guidance on the subject, and the questions that you can (and cannot) ask to determine if a person is using one of these devices for a legitimate protected reason.

NBC Bay Area recently aired a report by Vicky Nguyen, Jeremy Carroll and Kevin Nious, analyzing federal lawsuits that alleged ADA violations, calling it “legalized extortion.” NBC Bay Area’s Investigative Team found from the more than 10,0000 ADA lawsuits it reviewed that had been filed in the five states with the highest disabled populations (California, Texas, New York, Pennsylvania and Florida) since 2005, that California has more lawsuits (7,188) for access violations than the other four states combined. Note that this does not include complaints filed in state courts alleging violations of the ADA or its state law equivalents. The report notes that unlike the ADA, California disability access laws are enforced through private lawsuits – since California allows up to $4,000 statutory damages per violation – and asks the question whether the suits are motivated by access or money. The report revealed that over 50% of California ADA lawsuits were filed by 30 plaintiffs. The report also interviewed a Certified Access Specialist, who demonstrated the difficulty businesses face in achieving full compliance with the requirements for physical accessibility, such as the proper measurements for a disabled parking space. The report concluded that, while not a guaranteed shield, having a Certified Access Specialist assess and provide an “Access Inspected” certificate can help deter drive-by plaintiffs from targeting a business for a lawsuit.

Over a year after beginning the effort, the Access Board’s Medical Diagnostic Equipment Accessibility Standards Advisory Committee ended 2013 by issuing its final report on accessibility standards for medical equipment. This report comments on and recommends technical requirements to ensure the accessibility of certain types of medical equipment to persons with disabilities. The report covers a wide range of medical diagnostic tools, including, but not limited to, scales, examination tables, mammography equipment, X-ray machines, and other tools for examining and diagnosing patients.

The Access Board is an independent federal agency that helps develop technical guidelines and accessibility standards for physical environments and equipment. It functions as a coordinating body among federal agencies to represent the public, particularly people with disabilities. In July 2012, the Access Board formed the Medical Diagnostic Equipment Accessibility Standards Advisory Committee to review public comment on proposed standards for medical diagnostic equipment which the Access Board had previously issued in response to the requirements of the Patient Protection and Affordable Care Act. The Committee included 24 stakeholder members, including representatives from disability rights groups, healthcare providers, and medical device manufacturers. The Food and Drug Administration and the U.S. Department of Justice were also involved.

The Committee’s report does not yet have the force of law or formal regulation: Next, the Access Board will have to consider the Committee’s report and issue final guidelines, then U.S. Department of Justice will consider the report and guidelines and issue final regulations. Only after both of those steps occur will the Committee’s recommendations become mandatory requirements, enforced by the DOJ. We will keep you posted as this process progresses.

They’re here and they’re not going away. Six weeks ago we blogged about AXS Map. Now comes AbleRoad, a much more comprehensive customer review website/mobile app that allows individuals to post online reviews of a business’s accessibility to individuals with disabilities.

AbleRoad, which worked with Yelp.com to allow both Yelp and AbleRoad ratings to be viewed on the same screen, allows users to not only leave comments but to rank a business using a one through five-star rating system. Unlike AXS Map, AbleRoad’s rating system is based on four main categories: Mobility, Hearing, Sight, and Cognitive. Further, within each category there are 12 sub-categories (for a total of 48 categories) which allows users to rate businesses on accessibility issues including: Path of Travel, Directional Signage, Captioning on TVs; Braille Information; Guide-Dog/Service Animal access; and whether the business has Knowledgeable and Respectful Staff.

AbleRoad also has several features that AXS Map lacks, including the ability for users to quickly upload pictures (and video coming soon), provides easy sharing on social media platforms like Facebook and Twitter, and also has voice over screen capabilities for blind or low vision users. AbleRoad also provides a badge system where users can like and rate other reviewers. AbleRoad hopes that a reviewer’s badge level (Rookie to Hall of Fame) will help verify the reviewer as a trusted source for his or her reviews and content.

AbleRoad’s goal is to provide a forum where individuals with disabilities or their families and friends can research and choose businesses they wish to patronize based on accessibility. Like AXS Map, we expect AbleRoad to be well-received by individuals with disabilities. If accurate, it should be a very useful tool.

However, we still have serious concerns for businesses if the reviews provide misinformation. Like with AXS Map, we were unable to find a way on AbleRoad’s website or mobile app for businesses to flag reviews as inappropriate or to respond to reviews that are unfair or inaccurate. Without such a safeguard, these website/mobile apps may become a resource for serial plaintiffs looking for businesses to sue even if those plaintiffs have no genuine desire to patronize the businesses. As with AXS Map, we will follow up with the founder of AbleRoad to discuss these concerns and will keep you posted.

Many individuals with disabilities are choosing other power-driven mobility devices (OPMDs) such as Segways™ over traditional wheelchairs and scooters to provide them with enhanced mobility. In response, as we previously reported, the Department of Justice (DOJ) amended its regulations in 2010 to require businesses to allow the use of OPMDs in their facilities unless the business can establish that the particular OPMD cannot be operated safely within any particular facility. Three years later, businesses still have very little practical guidance from the courts and DOJ about when they may limit the use of these devices.

The regulations specify that businesses must analyze five factors to determine whether they must allow a particular OPMD to be used in a specific facility, including (i) the type, size, weight, dimensions and speed of the device, (ii) the facility’s pedestrian traffic, (iii) the facility’s design and operational characteristics, (iv) whether legitimate safety requirements can be established to permit the safe operation of another OPMD in that facility, and (v) whether the use of that OPMD creates a substantial environmental harm or conflicts with federal land management laws. But there is little guidance on how to apply these factors to specific situations.

The DOJ’s position is that “in the vast majority of circumstances,” public accommodations would have to admit Segways™ and other OPMDs. In its technical guidance document, ADA Update, A Primer for Small Businesses, the DOJ encourages businesses to develop written policies based on these factors specifying when OPMDs will be permitted on their premises and to communicate those policies to the public. However, it does not give examples of scenarios in which OPMDs can be excluded, other than to say a business may be able to limit OPMD use at certain times of the day when a facility has a high volume of pedestrian traffic.

Similar to Trip Advisor and Yelp, AXS Mapis a new customer review website/mobile app that allows people to review businesses on their accessibility to people with disabilities. Every business that opens its doors to the public can be reviewed. Hotels, restaurants, retailers, gyms: You name it – it’s on AXS Map ready to be reviewed. The mobile app will be available in December 2013 but website is up and running now.

Reviewers can provide a one through five-star rating for the accessibility of the entrance and restroom. They can also check boxes to indicate the presence of the following attributes: Quiet environment, accessible parking, ramp, second means of entry, and Braille. There is also a text box for comments. According to AXS Map’s founder, Jason DaSilva’s, blog, volunteers are also visiting businesses and collecting accessibility data for the site.

AXS Map’s focus is on what is important for most customers with disabilities: Being able to get into an establishment to enjoy its goods, services, and restroom facilities. We expect that this website and mobile app will be well-received by individuals with disabilities and their families to whom information about a business’ accessibility is important and, if accurate, very useful. That said, AXS Map could become a serious headache for businesses if reviews provide misinformation. We looked at the website and could not find a way for businesses to flag reviews as inappropriate or to respond to reviews that are unfair or inaccurate. AXS Map may also become a resource for serial plaintiffs looking for businesses to sue even if they have no genuine desire to patronize them.

We often hear from commercial landlords that they are not concerned about whether their tenant spaces are accessible because their leases place the obligation for complying with accessibility laws such as Title III of the ADA on the tenants. A recent decision from the federal district court in Northern California makes clear that landlords should consider a more proactive approach.

In Shaw v. Kaptan Ghimire, the court restated the basic proposition that while the ADA allows landlords and tenants to allocate the responsibility for complying with the ADA between themselves, landlords and tenants are both liable for violations in leased spaces with respect to persons with disabilities who are denied access. In addition, the court held that both the landlord and the tenant were responsible for the entirety of the plaintiff’s attorneys’ fees and costs awarded by the court. The court left open the possibility of an apportionment of awarded fees and costs only in situations where there is significant disparity in the time spent pursuing claims against the various defendants.

The case serves as a reminder that landlords should pay more careful attention to the state of accessibility in their tenant spaces even if their leases have provisions requiring the tenant to indemnify the landlord for any losses and pay its defense costs. Landlords cannot always rely on their tenants to provide them with a timely or competent defense for a number of reasons. Some tenants lack the financial resources, diligence, and/or knowledge to retain and manage outside counsel. Some choose to hire outside counsel who have no expertise in ADA Title III matters. Faced with litigation deadlines that cannot be postponed, landlords may wind up having to take matters into their own hands and hire their own counsel to represent their interests. Recouping those fees from tenants can be a challenge.

The ADA regulations currently contain no technical specifications for accessible hotel guest room beds. According to The U.S. Department of Justice (DOJ), travelers with mobility disabilities often complain that beds in many lodging facilities are too high for a transfer to and from a wheelchair. Other travelers with mobility disabilities have complained that the use of platform beds prevents them from using portable lifts because such lifts require space under the bed.

In response to these complaints, DOJ stated in 2010 its intention to issue a proposed rule that would regulate beds in mobility-accessible guest rooms in lodging facilities. The DOJ recently pushed back the date for this proposed rule until July 2014.

This delay is a bit of a reprieve for the lodging industry, which expressed its concerns about the forthcoming bed regulation in comments it filed in response to the 2010 Advanced Notice of Proposed Rulemaking. If the DOJ adopts the same height standard for beds as it has for benches and toilet seats (17”-19” above the floor), beds in accessible rooms will be much lower than they are now and travelers without disabilities assigned to these rooms will be even more dissatisfied. Hotels already receive many complaints from non-disabled guests about being assigned accessible rooms with grab bars and roll-in showers when there are no non-accessible guest room options left. There is a real economic impact to this possibility: Hotels must sometimes offer complimentary amenities to non-disabled guests who are unhappy with their accessible room assignments.

Lowering bed heights will create another problem if the DOJ also tries to provide under-bed clearance for portable lifts. California law requires 7” of clear height under beds in accessible guestrooms for this purpose but does not limit the height of the bed. If the DOJ imposes a 7” under bed clearance requirement and a 19” bed height requirement, the combined height of the mattress and box spring could not be more than 12”. This leaves little room for a premium mattress and box spring.

It will be interesting to see how DOJ deals with these issues if and when it does issue a proposed rule. In the meantime, lodging facilities should consider these issues when purchasing new bed foundations, mattresses, and box springs. Beds on frames instead of platforms are much easier to lower (i.e., the frame can be removed) if a guest with a mobility disability asks for the bed to be lowered to a transferable height. (Frames instead of platforms are also advisable in states, such as CA, which require space under the bed for a lift.) It may be possible to purchase high quality mattresses with detachable pillow tops that can be removed to make the bed lower. A hotel that is proactive about this issue will have happier guests with disabilities and potentially less to change when the regulations do come out.

Last month, the Honorable Phyllis J. Hamilton (United States District Judge, Northern District of California) issued an interesting [partial] summary judgment order in the matter of Francie Moeller, et al. v. Taco Bell Corporation, (Case No. C 02-5849) a case pending since December, 2002. Over the years, this case has been certified as a class action and then decertified, subjected to multiple summary judgment efforts by both sides, taken up to the Ninth Circuit and even tried in the form of a limited test case. The operative complaint concerns four plaintiffs, five barriers and six stores; plaintiffs had sought to expand the case include eight additional barriers and three additional stores. The import of this most recent order is how the court viewed the interplay of the Ninth Circuit’s Oliver v. Ralphs Grocery Co. (654 F. 3d 903 (9th Cir. 2011)) and Skaff v. Meridian N. Am. Beverly Hills, LLC(506 F. 3d 832 (9th Cir. 2007)) decisions in applying the pleading requirements of the Federal Rules of Civil Procedure (“FRCP”), Rule 8 to a Title III (and related state law) complaint.

In presenting its motion for partial summary judgment, the defendant argued that the plaintiffs “can seek relief only for barriers and restaurants pled in the [operative complaint].” Essentially, the defendant asserted that any barriers not specifically pled could not support a demand for either equitable relief or money damages in the case. The plaintiffs countered by pointing to the many avenues by which the defendant was expressly and formally put on notice of these non-pled barriers through the class certification and decertification process, deposition and written discovery, and prior summary judgment motions to the point that the operative complaint was “constructively amended” by application of FRCP, Rule 18. Ultimately, the Court decided to apply a strict pleading requirement rather than follow the plaintiffs’ suggested fair notice path ruling, “to the extent that the [operative complaint] does not identify specific barriers encountered by specific plaintiffs at specific stores, those claims are not presently in the case.” The Court also granted partial summary judgment in the defendant’s favor as to plaintiffs’ requests for money damages for deterred visit claims “for the simple reason that there are no deterrence claims pled in the [operative complaint].”

The plaintiffs made other interesting arguments including that the Oliver decision applied only to federal ADA claims (for injunctive relief) and not to state law claims for money damages and that the operative complaint adequately pled an entitlement to money damages for post-filing visits to the defendant’s stores by describing the violations as “ongoing.” The Court rejected both arguments but also indicated that the latter issue could possibly be resolved through a further amended complaint (for which no motion was before the Court).

ABOUT SEYFARTH’S ADA TITLE III TEAM

Seyfarth’s ADA Title III team consists of attorneys with extensive experience in ADA Title III litigation located in many offices across the United States, including California where plaintiffs are most active. With additional litigators admitted to practice in virtually every jurisdiction in the country, we have the resources to defend our clients against lawsuits and investigations on a nationwide basis and provide consistent and efficient service in national engagements. We have successfully defended against or resolved hundreds of lawsuits brought under Title III of the ADA and applicable state laws.